Citation Nr: 9824677
Decision Date: 08/14/98 Archive Date: 07/27/01
DOCKET NO. 96-00 333 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased rating for the service-connected
residuals of a fractured left zygoma with deviated septum and
antrostomy, currently rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. P. Havelka, Associate Counsel
INTRODUCTION
The veteran's active military service extended from July 1960
to August 1964.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 1995 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida. That rating decision, in part,
continued a 10 percent rating for the service-connected
residuals of a fractured left zygoma with deviated septum and
antrostomy which had been in effect since September 1970.
In September 1996, a hearing was held before Bettina S.
Callaway, who is the Board member making this decision and
who was designated by the Chairman to conduct that hearing,
pursuant to 38 U.S.C.A. § 7102(b) (West 1991).
The case was previously before the Board in December 1996,
when it was remanded for examination of the veteran and
medical opinions. Unfortunately the case requires further
remand.
REMAND
The veteran contends that the RO committed error in denying
an increased rating for the service-connected residuals of a
fractured left zygoma with deviated septum and antrostomy.
He argues that his service-connected disability has increased
in severity and warrants a rating in excess of the currently
assigned 10 percent rating.
The VA has a duty to assist the veteran once his claims are
found to be well-grounded. 38 U.S.C.A. § 5107(a)(West 1991).
A well-grounded claim is one which is meritorious on its own
or capable of substantiation. It need not to be conclusive,
but only plausible. Murphy v. Derwinski, 1 Vet. App. 78
(1990). The veteran's claim for an increased rating in this
case is shown to be well grounded, but the duty to assist him
in its development have not yet been fulfilled. See
Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).
In February 1997 a VA Compensation and Pension examination of
the veteran was conducted pursuant tot he Board's December
1996 remand. A notation at the end of the examination report
states "the examiner is NOT an ENT specialist but the
veteran has seen Dr. Karam in Bay Pines VAMC, 9/18/96." In
July 1997 the RO received outpatient treatment records for
the veteran from VAMC Bay Pines for the period from January
1994 to December 1996. The Board has reviewed these records
and we find no treatment record dated "9/18/96." If such a
treatment record exists it was not forwarded to the RO.
Records generated by VA are constructively included within
the record. If records of VA treatment are material to the
issue on appeal and are not included within the claims
folder, a remand is necessary to acquire such VA records.
Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
The February 1997 VA examination report does not address
specific criteria contemplated in rating the veteran's
service connected disability. Also, the VA examination
report states "x-ray of nasal bones and zygomatic arch and
sinuses ordered this date." However, there are no x-ray
examination reports of record.
The United States Court of Veterans Appeals (Court) has also
held that, when the medical evidence is inadequate, VA must
supplement the record by seeking an advisory opinion or
ordering another medical examination. Colvin v. Derwinski, 1
Vet. App. 171 (1991) and Halstead v. Derwinski, 3 Vet. App.
213 (1992).
In light of the foregoing, the Board would be remiss if it
were to attempt to decide the issues on appeal without first
obtaining all the pertinent evidence that is missing by
scheduling the veteran for another VA disability compensation
examination.
To ensure that the Department of Veterans Affairs (VA) has
met its duty to assist the claimant in developing the facts
pertinent to the claim and to ensure full compliance with due
process requirements, the case is REMANDED to the regional
office (RO) for the following development:
1. The veteran should be asked to
provide a list containing the names of
all health care professionals and/or
facilities (private and governmental)
where he had been treated for his
service-connected residuals of a
fractured left zygoma with deviated
septum and antrostomy since 1994.
Subsequently, and after securing the
proper authorizations where necessary,
the RO should make arrangements in order
to obtain all the relevant records of
treatment from all the sources listed by
the veteran which are not already on
file. Specifically the RO must obtain
the VA treatment records from VAMC Bay
Pines dated September 18, 1996, and the
x-ray examination reports from the
February 1997 VA examination of the
veteran. The RO should also obtain all
the records of any treatment at VA
facilities which are not already on file.
All information obtained should be made
part of the file.
2. The veteran should be scheduled for
another VA Compensation and Pension
general medical examination. The report
of examination should include a detailed
account of all residuals of a fractured
left zygoma with deviated septum and
antrostomy found to be present. All
necessary tests, including x-rays, should
be conducted and the examiner should
review the results of any testing prior to
completion of the report. If the
examining physician feels that examination
by a medical specialist, such as an
ears/nose/throat specialist, is necessary
for an accurate diagnosis, then the
appropriate specialist examination should
be ordered. The examining physician is
requested to comment on: any degree of
nasal septum deviation present and any
airway obstruction resulting therefrom;
any headaches, pain, tenderness, or
discharge associated with the affected
sinus; the percentage of nasal passage
obstruction resulting from the veteran's
deviated nasal septum; and the frequency,
nature and type of treatment of any
incapacitating episodes suffered by the
veteran. The claims folder and a copy of
this remand must be made available and
reviewed by the examiner prior to the
examination. The examining physician
should provide complete rationale for all
conclusions reached.
3. Following completion of the above
actions, the RO must review the claims
folder and ensure that all of the
foregoing development has been conducted
and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination report. If the examination
report does not include fully detailed
descriptions of pathology and all test
reports, special studies or adequate
responses to the specific opinions
requested, it must be returned for
corrective action. 38 C.F.R. § 4.2
(1995) ("if the [examination] report
does not contain sufficient detail, it is
incumbent upon the rating board to return
the report as inadequate for evaluation
purposes."). Green v. Derwinski, 1 Vet.
App. 121, 124 (1991); Abernathy v.
Principi, 3 Vet. App. 461, 464 (1992);
and Ardison v. Brown, 6 Vet. App. 405,
407 (1994).
4. The RO should adjudicate the
veteran's claim for an increased rating
for his service-connected residuals of a
fractured left zygoma with deviated
septum and antrostomy under the current
VA regulations and the current schedule
for rating respiratory disorders.
38 C.F.R. § 4.97, Diagnostic Codes 6502,
6513, 6514 (1995) amended by 38 C.F.R.
§ 4.97, Diagnostic Codes 6502, 6513, 6514
(1997).
Once the foregoing has been accomplished and if the veteran
remains dissatisfied with the outcome of the adjudication of
the claim, both the veteran and his representative should be
furnished a supplemental statement of the case covering all
the pertinent evidence, law and regulatory criteria. They
should be afforded a reasonable period of time in which to
respond.
Thereafter, the case should be returned to the Board for
further appellate consideration. The veteran needs to take
no action until so informed. The purpose of this REMAND is
assist the veteran and to obtain clarifying information. The
Board intimates no opinion as to the ultimate outcome of this
case.
Further adjudication of the question involving an increased
rating for the service-connected residuals of a fractured
left zygoma with deviated septum and antrostomy will be
postponed until the remand action is completed.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).